“It says here you have been cancelled,” said the professor, putting down the London newspaper.
“Have I been cancelled?’
“Yes – it says so.”
“What does that mean?”
The professor explained exactly what it meant, with great confidence.
“Thank you for explaining to me that I am cancelled, as I would never have realised otherwise.”
He nodded, and his mind now turned to other, more important matters.
“Please forgive my curiosity professor, but can you tell me how that news report ends? I would very much like to know the rest.”
The professor, irked by this interruption, picked the newspaper back up.
“The report ends by saying that you have not actually been cancelled, as such, just that a literature course has rotated to a new annual author.”
“I am not cancelled?”
“Not as such, not cancelled, no not formally, but we can agree the principle is exactly the same.”
“Can you tell me how the principle is exactly the same?”
The professor explained exactly how the principle was exactly the same, again with great confidence.
“Thank you for explaining to me how the principle was exactly the same, for I would never have understood.”
The professor nodded, with satisfaction.
“You see, there are those who want to prevent others from discovering the beauty of your work and appreciating your deft use of irony.”
The professor now returned to the silent contemplation of more important matters, and he was not to be disturbed again.
***
No: Stirling University is not ‘dropping’ Jane Austen.
As The Telegraph concedes at the end of their article, Stirling’s Special Authors module changes focus every year. This year it is Nobel Laureate Toni Morrison
So I suppose this is the time to set out this bugbear more fully.
*
Imagine – even if you are not a lawyer – that you are writing some legal or other formal text.
(The verb ‘to draft’ is used for this strange activity.)
Imagine now you have drafted something – but you realise that it is not spot-on.
The question is what you do next.
Do you go back to the text and amend and improve it until it does say what you want it to say?
Or do you just add a new sentence, that starts “For the avoidance of doubt…”?
*
In my opinion, the term “for the avoidance of doubt” is the hallmark of shoddy legal drafting.
If you are ever presented by a lawyer with an original formal document that contains this phrase, you should cross it out with your brightest coloured pen or pencil.
And then sack the lawyer.
The only time the term is permissible in a formal document is if you are doing a rescue job, amending someone else’s shoddy original text.
In that circumstance, even the strictest lawyer may have no other option but to use the dreaded term, as reframing the relevant clause or other provision may not be a realistic option.
But apart from that one situation, it is a danger sign in any formal document.
It means the author of the substantive clause or other provision is conscious that the formal text is vague or ambiguous, but that he or she cannot be arsed to make the text clear and precise.
The use of the term in informal writing is less of a problem, though it still indicates sloppiness in expression.
(And the keen-eyed of you will note that the preceding sentence avoided using the term.)
*
So thank you Baroness Jones for the parliamentary mention and commendation of this view.
And, for the avoidance of doubt, this stricture also applies to me and other legal bloggers.
***
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Once I was walking through the streets of an old university town with a religious-minded friend, and he turned to me and said: ‘you do realise that we are still in the early history of the church’.
The truth of that specific proposition was lost on me – I am a non-militant atheist – but the more general point has always stayed with me.
What any one generation may see as the end (or after the end) of a process may just be the start.
*
Those of us born after the 1950s and 1960s are used to thinking of ourselves as ‘post-war’.
Hitler and Stalin were regarded as historical figures, not near-contemporaries.
When I started my history degree in 1990, the events of just over forty-five years before seemed like from another century.
But now, thirty-or-so years on, 1990 is like only yesterday.
The fall of the Berlin Wall and the end of the Soviet Union feel like recent events.
History had – has – not ended.
And those of us who saw ourselves as fundamentally separated from the horrors of the mid twentieth-century will possibly be seen by future historians as just occupants of a happy interlude before the horrors of this new century.
*
This blog has previously covered Viktor Orban and his robust, unapologetic and evasion-free illiberalism.
For Orban there are no polite but insincere platitudes about the value of diversity and individual autonomy.
His illiberalism could not care less about your feelings.
His significant 2014 speech – which should be read by anyone interested in how Europe is going – places the illiberalism in plain sight.
We cannot say we were not told.
Now Orban and his political supporters have won yet another super-majority in Hungary.
And this was achieved despite the opposition liberal and progressive parties working together – and despite Orban’s conspicuous lack of support for Ukraine.
There perhaps could not be more favourable conditions in practice for Orban’s political opponents.
And they still lost.
Of course, the Hungarian political and media system is rigged in favour of Orban.
But not everything can be blamed on conspiracy.
What if – in a democracy – illiberalism is actually more popular than liberalism?
What if illiberalism is – as Orban avers – an ideology of the future, and not something for the history books?
*
We may – perhaps – not still be in the early history of the church.
But we may well still be in the early history of populist authoritarian illiberalism.
And Orban – who studied at the very same university college as me and my religious-minded friend, and only the year before – no doubt thinks so.
Orban may be right.
So let us do what we can to show that we are in the early history of liberalism.
For Orban may also be wrong.
***
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I tweeted something knowingly untrue this morning.
I said that, contrary to my long-standing absolute and principled objection to the gods-awful and professionally divisive QC system, I had the honour of accepting appointment as a QC.
Some people who care about these things are upset when they don’t have a ‘blue tick’ verification mark on their Twitter account.
Some people who care even more about these things are upset when, for whatever reason, their cherished ‘blue tick’ is removed.
I happen to have a high-follower Twitter account – where I tweet about things where credibility and indeed verification can be important – but I do not have and do not want a ‘blue tick’.
(Indeed, I have refused one.)
Why?
Isn’t credibility and verification important?
Well.
There are different ways of having credibility and different methods of verification.
I tweet (and blog) about the law, but I rarely say expressly that I am legally qualified.
This is because I want the content of my commentary itself to have credibility, rather than to appeal to authority.
If I have to resort to ‘actually I am a solicitor’ then something has gone astray in my commentary.
Either I get the law right or I get the law wrong – and in neither case should having ‘lawyer’ or ‘solicitor’ in my bio make any difference, still less a ‘blue tick’ against my name.
(I have a similar problem with lawyers who insist on having ‘QC’ on their social media account, as if their tweets are court pleadings, or formal advices or opinions.)
*
Indeed, in my opinion the ‘blue tick’ can confer a false sense of authority.
A view can be taken that a thing must be true or fair – just because it has been tweeted (or re-tweeted) by a ‘blue tick’ account.
Yet nasty and vile tweets can be tweeted by ‘blue tick’ accounts, as well as factually false information.
This is because a ‘blue tick’ is not actually a badge of credibility or verification, but – too often – a substitute for one.
Such an objection, however, does not mean that anything goes.
Instead, it means people should be critical with what they engage on social media.
Ask questions: who follows an account, who does an account frequently engage with, what are the replies and quote-tweets of a tweet, does the tweeter link to sources – and so on.
Forming your own view, in other words – rather than nodding-along with a false badge of authority.
*
I know the easy response to this will be for some to say that I misunderstand social media – and that people do not want to think for themselves.
But – we are still in the early history of social media and internet-based global communications, and we should not mistake what social media is like now with what it may become.
We could all shout at strangers in the street or on the bus – but almost nobody does, even though the opportunity is there.
And similarly people may become more measured and sensible in how they interact on social media.
The best regulation, in my view, comes from – where possible – empowering people to make informed decisions.
And the arbitrary and non-transparent system of ‘blue ticks’ – which confer respectability on some unpleasant and/or false tweets – is the means of encouraging people to not make informed decisions, rather than making them.
***
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And so this blog returns to the unhappy local council at Handforth.
(It is now a town council and no longer a parish council, which is a bit of a shame.)
You will recall the viral (but edited) video of that Zoom council meeting.
And you will recall the now-immortal exchange:
‘You have no authority here, Jackie Weaver, no authority at all!’
[Silence]
‘She’s just kicked him out.’
[…]
‘Read the standing orders, read them and understand them!’
*
A published analysis of the meeting concluded the following:
“on the face of the Standing Orders, Jackie Weaver did not seem to have the authority”
“Weaver did not have authority as ‘Proper Officer’”
“Weaver did not appear to have the formal power to exclude the disruptive councillors”
Those were, however, not the conclusions that were published and widely reported yesterday – but the conclusions of this blog at the time of the viral video.
That is what you can find when you – ahem – read the standing orders.
When you read them and understand them.
*
What has returned Handforth council to the news is that Cheshire East Council has now published (with redactions) six reports in respect of allegations of bullying.
These reports were requested in a freedom of information request – and although that request was refused – the refusal was on the basis that the reports would be published as part of a publication scheme.
The reports are not pleasant reading – and they reveal an ugly culture of confrontation and bullying in local government that is perhaps not as widely known about as it should be.
In the reports there is – almost as an aside – a view taken as to whether Weaver did have the authority.
But that view is not the primary purpose of the reports – the reports are instead about the conduct of the councillors, and so it is interesting to see how this view on Weaver’s authority is taken in context:
That is quite a list of words for what Weaver faced: “aggressive… threatening… menacing… unnecessarily confrontational and disrespectful”.
The report avers: “Faced with what were unusual and difficult circumstances, and the deep-seated issues underpinning those circumstances, we can understand why [Weaver] acted as she did […]”
*
My blogpost last year took a relaxed view of what Weaver did in the circumstances.
She did not have the (formal) authority – but in the remarkable and unfortunate practical situation she was placed in, where a meeting should be going ahead but some councillors wanted to make sure it did not, the conduct of some of those councillors seemed to mean there was little choice for Weaver at the time of the meeting.
This blog also averred last year that the action by Weaver to place councillors in the Zoom waiting room seemed to have been subsequently ratified and affirmed by other councillors, though the published reports don’t take a view on that.
Weaver maintains that the “jury was still out” on whether she was able to move the councillors to the waiting-room, and she is reported as saying the following:
“We were still very vague about how virtual council meetings worked and I did not actually remove them from the meeting, in my opinion, I moved them to the waiting room.
“A little later in the meeting the remaining councillors voted to remove them.
“So I welcome the findings of the report but am deeply saddened that it took so long and cost so much to get there.”
*
The six published reports are not investigations into Weaver.
They are instead investigations into serious complaints in respect of others – in which a view is taken on whether she had the authority.
And, as this blog concluded at the time, Weaver did not have the authority.
But the reports show the wider problem.
The wider problem is that others were not acting within the rules.
It was an almost-impossible position for Weaver or anyone else in her position, and it is not obvious whether, in the circumstances, a less-bad route was practically available at that meeting so as to ensure that the meeting continued.
One of the reports even concluded that bullying took place at the meeting:
While another councillor was not found to have bullied at the meeting was also found to have breached the code by their conduct:
Not bullying – but “unnecessarily confrontational and disrespectful […] There was no need […] to make comments that sought to discredit and question [Weaver]’s experience and professional integrity.”
*
Of course – it is understandable why the media are focusing on whether or not Weaver had the authority.
You cannot argue with a meme.
But that should be a starting-point, not a finishing-point.
The now-published reports indicate a troubling situation in local government: the confrontational, threatening and (in one case) bullying behaviour of councillors.
The lack of “authority” in all this is therefore a lot wider than any one person.
**
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***
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These – in effect – fines appear to be just the first round, and it may be that further penalties are issued.
There may even be one issued to the Prime Minister.
Currently Downing Street is maintaining that no rules were broken – even though these fixed penalty notices mean that the Metropolitan Police have reasonably concluded after investigation that offences have been committed.
Perhaps Johnson and his staffers want ‘their day in court’ before they accept any rules were broken.
This is all engrossing political drama – even political soap opera.
So it is important to not overlook why any of this really matters.
It matters for two reasons.
First, it is about legality.
Those in government are not above the law – and certainly not above the coercive restrictions that almost-casually imposed upon the rest of us during lock-down.
(By ‘casually’ I mean that the rules were imposed often without proper parliamentary debate or scrutiny and were often published at the last moment before taking effect.)
Second, it is about accountability.
The Prime Minister expressly told the House of Commons that rules were not broken and that he was unaware of the pandemic of partying in Downing Street.
On the face of it, it looks as if the Prime Minister was lying.
Of course, in the real world, politicians lie all the time.
But, taking such a cynical view at its highest, there should still be some adverse consequence to a Prime Minister misleading the democratic house of parliament.
‘Partygate’ is only incidentally about parties – the triviality of the circumstances co-exist with serious issues of legality and accountability.
And that is why it has not been obscured by the fog of war.
The problem of legality and accountability is still there, and it needs to be addressed.
And until and unless the problem is addressed, the problem will continue to de-stabilise British politics – because it is not really about partying at all.
**
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***
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“How can you defend someone you know to be guilty?” is the one question almost all lawyers will be asked at one time.
But it is perhaps a question about the wrong lawyers and about the wrong area of law.
The question presupposes criminal lawyers and criminal law.
Yet no criminal lawyer can actively defend as not guilty someone who has admitted their guilt (though the prosecution can still be put to proof).
*
There is a far more difficult question for those who advise on civil rather than criminal liability.
(Civil law is, in general, about the legal obligations that we owe each other in contract, or tort, or otherwise – as opposed to obligations we owe to the state.)
The question is: “How can you defend someone you know to have deliberately breached civil obligations?”
For what often happens in civil law is that the client will know that they are (or will be) in breach of a contract, or of a duty of care, or of some other legal obligation.
But they do not care.
They just want to know the consequences of that breach – whether they can avoid or mitigate the consequences.
The lawyer will, in turn, explain the consequences of the breach – the likelihood of actually being sued and the amount of damages and so on.
The client will then assess whether the breach is worth the trouble.
They will – to use a common phrase in legal practice – ‘take a view’.
That the ‘view’ being ‘taken’ is a view on whether they should risk breaching a legal obligation is not said aloud.
The relevant exchange is in the following form:
Client: Can I do [x]?
Lawyer: If you do [x] then there is a risk of [y] legal liability.
Client: Ok, we will take a view.
*
Some lawyers would say there is nothing wrong with this.
If there is a breach, and the party adversely affected sues successfully, then the injured party will be compensated and (supposedly) placed in the position they would be in had the legal wrong not happened.
A breach of contract will lead to damages to put the injured party in the position had the promise been fulfilled.
In (most) torts, the injured party will have damages intended to place them in the position had the tort not been committed.
And so on.
In effect – damages and so on are the cost of business.
It was not because they did not realise that there would be legal consequences.
But instead they knew that if they budgeted for the resulting compensation payments, they would head off any legal claims.
They would deliberately break civil obligations knowing that they could manage any civil risk.
They would ‘take a view’.
**
Postscripts – from Twitter:
Me too! I remember feeling shocked about it. I soon realised that strategy in civil law often involves “taking a view”. I also realised that is fine to do as law sets out the consequences – damages but my political view is that morally it can result in the wrong decision.
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***
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You will be remembered, if at all, for two things.
First, that nobody could ever remember exactly the arrangement of lower-case letters, or the hyphen, or whether ‘term’ was plural, or whether ‘Parliaments’ was singular, in your title – at least without checking.
Second, that you were a singularly useless piece of legislation.
You were to ‘enshrine’ fixed-term parliaments ‘in law’.
Ho ho.
But you were circumvented in 2016, when it suited politicians.
And you were circumvented in 2019, when it suited politicians.
And you were going to be circumvented again and again whenever it suited politicians.
Yes, there may have been an indirect effect in that any circumvention of the Act was not that simple.
But circumventions were not that difficult either.
In the end, you turned out to be more of an ornament than an instrument.
And today you were repealed.
Dissolution and calling of Parliament act 2022 has gained Royal Assent
